IN THE HIGH COURT OF JUDICATURE AT BOMBAY

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

APPELLATE SIDE

APPELLATE SIDE

APPELLATE SIDE

FIRST APPEAL NO. 1021 OF 2004

FIRST APPEAL NO. 1021 OF 2004

FIRST APPEAL NO. 1021 OF 2004

Krishna Appa Pedanekar & ors. ... Appellants

V/s

Parvati @ Vasanti Shankar Pedanekar

& ors. ... Respondents

Shri S.B. Shetye for the appellants.

Shri K.L. Parab for the respondents.

CORAM: P.V. KAKADE, J.

CORAM: P.V. KAKADE, J.

CORAM: P.V. KAKADE, J.

DATED: 15TH DEC., 2004.

DATED: 15TH DEC., 2004.

DATED: 15TH DEC., 2004.

P.C.:

P.C.:

P.C.:

1. The appellants - petitioners have preferred this

appeal against the judgment and order passed by the

Joint Civil Judge, S.D., Ratnagiri, on 8.8.1994

dismissing the application for seeking probate in Misc.

Application No. 40 of 1991.

2. I have heard the learned counsel for both parties.

Perused the record.

3. The miscellaneous application was filed under Sec.

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276 of the Indian Succession Act for grant of probate of

a will dated 1.4.1985 executed by deceased Appa Laxman

Pedanekar in favour of the applicants. The learned

Trial Judge adjudicated the application on merits and

dismissed the same holding that applicants have proved

that deceased Appa Laxman Pedanekar had executed a will

on 1.4.1985. It was further held that the applicants

have proved that deceased Appa Laxman Pedanekar had

right to bequeth the suit property to them. However, it

was held that applicants did not prove that

non-applicant No.5 is not the legal heir of deceased

Appa Pedanekar and finally it was held that the

application was untenable for want of proper parties.

Therefore, in other words, what was held in favour of

the appellants that the will was legal and proper which

was executed by Appa Laxman Pedanekar in proper manner

and it was in favour of the applicants. It was further

observed that deceased had right to bequeth the suit

property to the applicants. Further, the reasoning

adopted by the learned Trial Judge appears that he has

taken the view that probate could not be granted because

there was no executor appointed by the will.

In this connection, I must note that the learned Trial

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Judge overlooked the basic legal position that the

probate is not required under Sec. 276 of the Indian

Succession Act in the Mofussil area. In other words,

the requirement of obtaining probate is compulsory if

the probate is to be obtained regarding the will

executed within the jurisdiction of Presidency town i.e.

Bombay and three towns in the country. It was

adjudicated finally by this Court in the case of

Bhagwansang Bharaji v/s Bechardas Harjivandas reported

Bhagwansang Bharaji v/s Bechardas Harjivandas report